Opinion
01-01-1825
The Commonwealth v. John Linton
This was an adjourned Case from the Superior Court of Law for Russell county. The prisoner was indicted for forgery in altering a bail bond. The bond was set out in the Indictment, and is in the following words: " Know all men by these presents, that we, John Sergeant, William Bays, Charles Cleghorn, Jon. H. Wood, are held and firmly bound unto Henry Wood, High Sheriff of Scott county, in the sum of seventy dollars; to which payment well and truly to be made to the said Henry Wood, High Sheriff as aforesaid, we bind ourselves, and every of us, our and every of our heirs, executors and administrators, jointly and severally, firmly by these presents. In witness whereof, we have hereunto set our hands and affixed our seals, and 15th March, 1823.
The condition of the above obligation is such, that whereas a Writ of Testatum Capias, has been sued out of the Clerk's office of the County Court of Russell county, bearing date the 10th day of March, 1823, by John Linton, for the sum of thirty-five dollars, and the same being duly served by Jonathan Wood, Deputy Sheriff for Henry Wood, High Sheriff of Scott county, on the said John Sergeant, who hath tendered the above bound William Bays, Charles Cleghorn, Jon. H. Wood, as appearance bail. Now if the said John Sergeant, shall well and truly make his appearance at the Court house of Russell county, on the first Tuesday in May, before the Justices of said county, then and there enter his appearance, or give special bail as the Law directs, then this obligation to be void, otherwise, to remain in full force and virtue.
John Sergeant, (Seal.)
William Bays, (Seal.)
Charles Cleghorn, (Seal.)
Jonathan H. Wood, (Seal.)
Teste, J. H. Wood."
The forgery is charged in the Indictment, to consist in the alteration of the said bond, by erasing the name of Jon. H. Wood from the bond and the condition, and by tearing off the signature and seal of the said Jonathan H. Wood, so as to make it the bond of the said Sergeant, and of the other two securities only, with intention to defraud the said Bays and Cleghorn.
There were two other Counts, charging the prisoner with uttering the said bail bond, knowing the same to be false and forged.
On his Indictment, the prisoner was convicted, and moved the Court to set aside the verdict, and grant him a new trial, which was refused. He then pleaded in arrest of judgment, that the bail bond set out in the Indictment, was taken under a void Writ, and that the bond itself was originally, wholly void, and, that therefore, the bond was not such a paper, as that a forgery of it could be committed under the Statute. In this plea, he set forth a Capias ad Respondendum in the following words: " The Commonwealth of Virginia, to the Sheriff of Scott county, greeting: We command you, that you take John Sergeant, if he be found within your bailiwick, and him safely keep, so that you have his body before our Justices of our Court of Russell county, at the Court-house, on the first Tuesday in May next, to answer John Linton of a plea of debt for $ 35, damages $ 35, and whereupon, our Sheriff of our said county of Russell, hath made return, that the said John Sergeant is not found within his bailiwick, and have then there this writ. Witness, Henry Dickinson, Clerk of our said Court, at the Court-house, on the 10th day of March, 1823, in the 47th year of the Commonwealth.
James P. Carrel, D. C."
Endorsed, " bail required; Linton, p. q."
The return on it, is " March 15th, 1823, executed on the body of John Sergeant by me, Jon. H. Wood, D. S. for Henry Wood, Sheriff of Scott County."
The prisoner alleged in his plea, in arrest of judgment, that this was not a Writ of Testatum Capias, and if it was, no such Writ could issue in this Case, and the bond on its face, is a nullity.
The Superior Court adjourned to the General Court, the following questions: 1. Can a prosecution for forgery be sustained, when the offence charged is the forgery of an appearance bail bond, which was not originally valid, but defective and null? 2. Is the paper exhibited by the Indictment and designated an " appearance bail bond," valid, and substantially good as such?
OPINION
Bouldin, J.
In regard to the first question on which the opinion of this Court is required, it may be observed, that no direct response can be made, because neither a general affirmance or denial of the proposition, would be true.
The rule is, that the false making and forging any instrument, whereby another may be injured, constitutes the offence of forgery, even though the writing be of such a character, that it would not, if genuine, be effectual to its purpose, provided the defect in its frame or character, be not open and palpable, so that no one could be deceived by it, without the grossest negligence. This rule applies as well to a bail bond, as to any other.
2 East, ch. 19, § 43, p. 948.
Some of the Judges are of opinion, that a bail bond taken in virtue of the Writ, & c. stated in the prisoner's plea, in arrest of judgment, notwithstanding the irregularity of the said Writ, is not of that palpably void character, that no one could be deceived thereby, but that it might very probably have passed to an Office Judgment, and the bail have paid the debt, without employing Counsel at all, which is the common course where the principal really owes the money.
But a majority of the Judges, deem it unnecessary to answer the first point presented with reference to the Writ and allegation of the plea in arrest, which, except the bail bond itself, form no part of the record, because nothing which does not appear by the record, can be alleged in arrest of judgment, and the unanimous opinion of the Court on the second question, contains a sufficient answer to the first, for the purposes of this Case.
In answer to the second question, the Court doth decide, that although some questions may be raised, respecting the validity of the bond exhibited by the Indictment, arising from the recitals in the condition thereof, the same as it appears by the record, is so far valid and substantially good, that a prosecution for forgery committed by altering the same in a material part, can be sustained.
Which is ordered to be certified, & c.